Genuine competence standard in university disability claims

What a competence standard is

A competence standard is a defined legal concept under the Equality Act 2010. Schedule 13, paragraph 4 defines it as “an academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability.”

In practical terms, it is a benchmark that describes the level of knowledge, skill or ability a student must actually demonstrate to pass a module, progress on a course, or obtain a qualification. Examples might include a requirement that a medical student can safely perform a clinical procedure, that a law student can construct a legal argument, or that a language student can translate accurately. The standard is about the outcome to be achieved, not about how it is assessed.

The reason the concept matters is that the Equality Act treats competence standards differently from ordinary provisions, criteria or practices (PCPs). Under Schedule 13, paragraph 4(2), a PCP “does not include the application of a competence standard.” This carve-out has an important consequence: the duty to make reasonable adjustments does not apply to the competence standard itself. A university is not required to lower or waive a genuine competence standard as a reasonable adjustment for a disabled student.

The crucial distinction between the standard and its assessment

The single most important distinction is between the competence standard (the ability being tested) and the method or process used to assess whether the student meets it.

The reasonable adjustments duty does not apply to the standard itself, but it does apply fully to the way the standard is assessed. A university must make reasonable adjustments to assessment methods so that a disabled student is not placed at a substantial disadvantage in demonstrating the competence they actually possess. For example, if the genuine standard is that a student can analyse a complex problem, giving a dyslexic student extra time, a reader, or a computer does not lower the standard; it removes an obstacle unrelated to the competence being tested. Refusing such adjustments could be a failure of the reasonable adjustments duty.

By contrast, if the genuine standard is that a student can, for instance, physically carry out a resuscitation to a defined clinical level, that ability is the very thing being assessed, and it cannot be adjusted away without changing what the qualification certifies.

The practical questions are therefore: what is the university actually requiring the student to be able to do, is that requirement a genuine test of competence or merely the way the university happens to run the assessment, and can the disadvantage to the disabled student be removed without diluting the genuine standard.

When the university can rely on a competence standard

A university can rely on a competence standard, and treat it as outside the reasonable adjustments duty, only where the standard is genuine. A standard is not genuine simply because the university labels it as one. Three conditions broadly need to be satisfied.

1. It must genuinely be a standard of competence or ability, not a disguised procedural or logistical rule. A requirement about how or where something is done, rather than what ability must be shown, is likely to be a PCP that must be adjusted, not a competence standard.

2. Applying the standard must not itself amount to unjustified discrimination. Even though the reasonable adjustments duty does not apply to a genuine competence standard, the application of that standard can still be challenged as indirect discrimination under the Equality Act. To withstand that challenge the standard must be objectively justified, meaning it must be a proportionate means of achieving a legitimate aim. In this context that requires the standard to be genuinely relevant to the competence the course or qualification is designed to certify, and to go no further than necessary to achieve that aim.

3. The standard must be applied consistently and for its proper purpose. If a requirement is applied inconsistently, or exists mainly for administrative convenience, it will be harder to defend as a genuine and proportionate competence standard.

Where a standard could have an adverse impact on disabled students and is not genuinely necessary, the university is expected to consider whether an alternative standard could achieve the same legitimate purpose without that adverse impact. Failing to keep standards under review, or defending a requirement that is really about convenience rather than genuine ability, undermines reliance on the exemption.

How this fits with the wider duties

It is worth separating the different legal duties that can be engaged, because a university cannot rely on the competence standard exemption to escape all of them.

The reasonable adjustments duty under sections 20 and 21 applies to PCPs, to physical features and to the provision of auxiliary aids. It does not require adjustment of a genuine competence standard, but it does require adjustment of assessment methods and of any surrounding PCPs.

Indirect discrimination under section 19 can still be argued in relation to the application of a competence standard, and here the burden is on the university to show objective justification. This is the route through which a competence standard that is not genuinely necessary, or is disproportionate, can be attacked.

Discrimination arising from disability under section 15 can also be relevant where a student is treated unfavourably because of something arising in consequence of their disability, again subject to the justification test.

The recent litigation involving the University of Bristol and the Abrahart case illustrates that courts will scrutinise closely whether a university has genuinely engaged with its duties towards disabled students, rather than simply asserting that a requirement is a fixed academic standard. Universities cannot use the competence standard label as a shield to avoid considering adjustments to the process by which competence is judged.

Practical points if you are dealing with this

If a student is challenging a requirement, or a university is seeking to rely on one, the analysis usually turns on the following.

1. Identify precisely what ability the requirement tests, in the words of the course or module learning outcomes and professional or regulatory requirements, rather than as described in general terms.

2. Ask whether that ability is a genuine and necessary part of what the qualification certifies, or whether it is really about the format, timing or logistics of assessment.

3. If it is a genuine competence standard, consider whether the assessment method can be adjusted so the disabled student can demonstrate the competence without the disability itself skewing the result.

4. If the requirement is really a PCP or an assessment method dressed up as a standard, the reasonable adjustments duty applies in full, and refusal to adjust may be unlawful.

5. Even for a genuine standard, be ready to justify it as a proportionate means of achieving a legitimate aim, and to show that alternatives without adverse impact have been considered.

Missing facts that would sharpen the answer

The correct outcome in any specific dispute depends on details that are not yet before me. It would help to know the exact wording of the requirement in issue, the learning outcomes and any professional body or regulatory requirements attached to the course, the nature of the student’s disability and the specific disadvantage claimed, the adjustment requested and the university’s reasons for refusing it, and whether the requirement is applied uniformly. Those facts determine whether the requirement is truly a competence standard, whether the assessment method should have been adjusted, and whether the university can objectively justify its position.